The supreme shortcut

OnWednesday, the Supreme Court heard two publicinterest petitions which purportedly question the legality of the Rafale deal. One of the petitioners, ML Sharma, has been rapped on the knuckles by the court on multiple occasions for filing frivolous PILs. The second petitioner, advocate Vinit Dhanda, does not seem to be a chronic PIL lawyer, but here’s an open secret: many lawyers see filing ‘PILs’ in controversial issues a shortcut to becoming famous. Some even succeed.

And our politics will change, become more inclusive. India will change for the better

The downside of this fame — some days of television and newspaper coverage — is that genuine issues are often poorly presented and thus buried. Here’s another open secret in Delhi: Politicians annoyed by unflattering news stories get someone they trust to file a half-baked PIL. The Supreme Court will most likely throw it out and the politician concerned will portray the decision as a clean chit in public. I am not casting any aspersions on the intentions of the Rafale petitioners.

I don’t know them, but I hope that they are bona fide. However, when there’s a serious issue that needs to be raised through public interest litigation, domain experts/activists with impeccable integrity, a record of rigorous research and a team of lawyers far senior than the gentlemen in this case can serve the cause better.

Another concern is the overuse of the country’s top court. It’s frustrating and painful to see all and sundry treating it as the first port of call. I am not talking about cases where there is a grave urgency and matters that fall exclusively within the domain of the apex court. There is a reason we have several arms and institutions like the local thana, the CBI, CVC, CAG, district courts and high courts, but only one Supreme Court. There is also a reason we don’t shut down all these institutions because we have the Supreme Court.

The Supreme Court is not a substitute of all these institutions or the ‘best forum’ among them. All of them perform crucial functions that cannot be and must not be performed by any other entity. Unfortunately, this is not how the general public sees it. This affects our democracy.

In the Rafale matter, the apex court has, without issuing notice, asked the Modi government to share details of the decision-making process behind the aircraft deal. It has said that it wants to know the entire process except the technical details and pricing. However, the controversy over the Rafale deal is largely about two things. 1. The procedure and authority behind reducing the amount of jets from 126 to 36. 2. The selection of Anil Ambani’s Reliance Defence as the offset partner for the deal and whether it smacks of cronyism and illegality.

Three news reports constitute a large part of the fuel in the controversy. 1. A statement (not retracted contrary to rumours) by former French president Francois Hollande that France did not have a choice but to include Anil Ambani’s company in the deal, 2. Another report says that one of Anil Ambani’s firms funded a movie produced by Hollande’s partner Julie Gayet. 3. Citing an internal Dassault document, the third report claims that involving Anil Ambani’s company was imperative and mandatory for Dassault.

With all humility at my command, I believe that the apex court should either summon Reliance Defence, an order without which any thorough inquiry into the matter is impossible, or direct an appropriate forum (the CBI or a Special Investigation Team) to probe whether there has been any cronyism. If the documents that will be submitted to the court don’t disclose any illegality, the judges must clearly state that their decision will apply only to the limited issues presented before them, and that their order should not be construed as a clean chit over the entire controversy. The judges should also clarify that their observations should not stop any agency from looking into the matter.

Finally, it must assure the country that Rafale cases will be examined with the same level of scrutiny and rigour that were seen in many other cases such as the 2G matter. We must not forget the words of former US justice Robert H Jackson describing the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”

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